Given the pervasiveness of regulation over the American economy, ensuring procedural due process for all Americans wishing to participate in both adjudications and rulemakings before administrative agencies is no easy task. Indeed, unlike Congress—which is a political institution specifically designed by the Founding Fathers to promulgate laws based on the will of the people—an administrative agency, as a creature of Congress, is specifically designed to be apolitical so that it can implement the will of Congress by following its particular governing statute (e.g., the Federal Communications Commission and Communications Act; the Federal Energy Regulatory Commission and the Federal Power Act). For this reason, we have the Administrative Procedure Act, which requires, among other things, administrative agencies to provide interested parties with a meaningful (and orderly) opportunity for notice and comment regarding agency decisionmaking, and to disclose any private meetings with outside parties which may have a material impact on this decisionmaking (what are known as “ex parte” rules). By establishing such procedural safeguards, an administrative agency can (ideally) make dispassionate decisions based on the law, economics and the facts before it, rather than succumb to outside political pressure.

Recently, however, there is a growing and disturbing trend in the way regulatory policy is practiced in Washington. According to the Wall Street Journal, given Congress’ increasing deadlock, we have seen a dramatic increase by advocacy groups on both sides of the aisle to flood administrative agencies with perfunctory “robo-comments” to express the vox populi on particular policy items at hand. While I certainly do not want to be accused of denying anybody’s free speech rights, as a former lawyer in the general counsel’s office of two federal agencies, experience has taught me that these “robo-comments” generally offer nothing of substance, which doesn’t help a regulator write a legally-defensible order on highly-technical issues that will be upheld by a reviewing court. However, as the regulatory process becomes more contentious, and Congress more impotent, administrative agencies (who are headed by political appointees) are nonetheless increasingly giving these “robo-comments” probative weight. The problem with this growing practice is that the arrival of thousands (or in the case of the FCC’s recent fight over net neutrality millions) of robo-comments does not constitute the proverbial “weight of the evidence.” All these robo-comments amount to is administrative law vigilantism.

While the growing use of robo-comments is problematic, what is more disappointing is that the Obama Administration is encouraging such populist “clictivism” as a substitute for reasoned analysis. In fact, rather than provide substantive legal and economic contributions to regulatory proceedings, President Obama has become the “Clictivist in Chief.” In so doing, the President is, in effect, eroding both the rule of law and the confidence in the government institutions he swore to protect.

with respect to new wireless handsets, there are ample alternatives to circumvention. That is, the marketplace has evolved such that there is now a wide array of unlocked phone options available to consumers. While it is true that not every wireless device is available unlocked, and wireless carriers’ unlocking polices are not free from all restrictions, the record clearly demonstrates that there is a wide range of alternatives from which consumers may choose in order to obtain an unlocked wireless phone. (77 Fed Reg. 65265) (Emphasis in original.)

In sum, complex regulatory policy should not be made by a “popularity contest” of who filed the most robo-comments, but by a careful and dispassionate examination of law, economics, and the record presented before the agency. It is a pity that the President of the United States, as our nation’s chief law enforcement officer, does not appear to respect this basic principle.

Lawrence J. Spiwak is the President of the Phoenix Center for Advanced Legal & Economic Public Policy Studies (www.phoenix-center.org), a non-profit 501(c)(3) research organization that studies broad public-policy issues related to governance, social and economic conditions, with a particular emphasis on the law and economics of the digital age.